Leonne Velickovic/Western Australia/Murray Kenneth Hodges, Rodney Charles Hodges, David Malcolm Saggers
[2000] NNTTA 370
•19 December 2000
| NATIONAL NATIVE TITLE TRIBUNAL |
Leonne Velickovic/Western Australia/Murray Kenneth Hodges, Rodney Charles Hodges, David Malcolm Saggers, [2000] NNTTA 370 (19 December 2000)
| Application No: WO00/220 |
| IN THE MATTER of the Native Title Act 1993 (Cth) |
| - and - |
| IN THE MATTER of an inquiry into an expedited procedure objection application |
| Leonne Velickovic (native title party) |
| - and - |
| The State of Western Australia (Government party) |
| - and - |
| Murray Kenneth Hodges, Rodney Charles Hodges, David Malcolm Saggers (grantee party) |
| REASONS FOR A DETERMINATION |
Tribunal: The Hon E M Franklyn QC
Place: Perth
Date: 19 December 2000
Catchwords: Native Title – future act – expedited procedure objection application in respect of nine proposed mining tenements – Government party satisfied in respect of eight thereof that there is no future act because native title has been extinguished – grants the eight tenements which thereupon ceased to be future acts – Tribunal has no jurisdiction in respect thereof – proposed grant of ninth tenement - prospecting licence of 129.63 hectares – Native title extinguished over all but 10 hectares because of previously granted and forfeited mining lease – the 10 hectares situated on land the subject of a former prospecting licence – the proposed prospecting licence surrounded by current mining tenements, most on land the subject of former mining tenements – objection heard on papers – objector’s evidence of social/community activities and areas and sites of significance not specific to proposed tenement – evidence inadequate to give rise to issues of likelihood of relevant interference or major disturbance – objection dismissed.
Legislation:Native Title Act 1993 (Cth) s 237, Aboriginal Heritage Act 1972 Mining Act 1978 (WA),
Cases:Western Australia v Ward (2000) 170 ALR 159. Dann v Western Australia (1997) 74 FCR 391. Daniel & Ors v The State of Western Australia, Butler and MacDonald, WO99/197 unreported, Deputy President CJ Sumner, 11 August 2000
Background
By notice dated 4 February 2000 issued under s 29 of the Native Title Act 1993 (the Act), the State of Western Australia (the State) advised its intention to grant to the above-named grantees (the grantees) nine prospecting licences numbered P24/3681 to P24/3689 inclusive. The notice included the statement that the State considered the grant of each to attract the expedited procedure under the Act.
On 7 February 2000, Leonne Velickovic, a claimant on behalf of the Widji people in native title application WC98/27, lodged objection to the inclusion of such statement in the notice, relying in general terms on each of the grounds provided for by s 237(a), (b), (c) of the Act.
Pursuant to directions made on 11 July 2000, the State lodged with the Tribunal and served on the other parties a statement of its contentions supporting the inclusion of the said statement in the notice and a copy of the documents on which it relies. These documents, the contents of which are not challenged, reveal there to be no Aboriginal communities on or in the vicinity of any of the proposed tenements and no Aboriginal sites registered under the Aboriginal Heritage Act 1972 in respect of any of them. Also pursuant to such directions, the native title party lodged with the Tribunal and served on the other parties in respect of the grant of the nine tenements a single statement of the contentions relied on by it and a single affidavit sworn by the objector in support of the same.
The grantees elected to not lodge or serve any statement of contentions or evidence to support the grant and rely on the contentions of, and documents provided by, the State.
By letters dated 5 October 2000, the State advised the objector and the Tribunal that the land the subject of each of the proposed tenements P24/3681 to P24/3688 inclusive is located entirely within the lands the subject of mining leases 24/378 and 24/373 granted respectively on 24 June 1991 and 30 August 1990 and forfeited on 5 August 1994, that consequently, on the authority of WA v Ward 170 ALR 159, native title has been wholly extinguished in respect of the same and that it proposed to grant to the grantees each of those tenements following the expiration of 14 days.
At a directions hearing held on 26 October 2000 the State advised (by its counsel) that prospecting licences P24/3682 to P24/3688 inclusive had been granted pursuant to the provisions of the Mining Act and that it was awaiting instructions as to the grant of P24/3681 and P24/3689. The directions hearing was adjourned to 23 November 2000.
By letter dated 27 October 2000, the State advised the Tribunal that prospecting licences P24/3682 to P24/3688 inclusive, and also prospecting licence P24/3681 had been granted on 25 October 2000 but that no decision had been taken as to whether the State would grant P24/3689 prior to the Tribunal’s determination of the objection.
By letter dated 22 November 2000, the State advised that the proposed tenement P24/3689 was situated partly on an earlier mining lease and partly outside the same and that it did not propose to grant the tenement on the basis that native title had been extinguished,
At the adjourned directions hearing on 23 November 2000, at which the grantees were not present, the State confirmed the advice contained in its letters of 27 October 2000 and 22 November 2000 but did not provide any particulars of the earlier mining lease on which the proposed prospecting licence P24/3689 was said to be partly situate, nor the extent to which the one overlaps the other. At this directions hearing the State and the objector each informed the Tribunal that each was happy to have the objection application determined by the Tribunal by a consideration of the documents and materials lodged with or provided to it, without a hearing being held. Mrs Sue Hodges, the wife of the grantee and grantees’ representative, Rodney Charles Hodges, was available on telephone for the purpose of this directions hearing. She had no instructions in the matter but agreed to arrange for either Rodney Charles Hodges or one of the other of the grantees to advise the Tribunal whether they agreed to the matter being dealt with on the papers. In the absence of such agreement, the matter was tentatively listed for hearing on 30 November 2000. On 23 November, Rodney Charles Hodges notified the Tribunal by telephone and confirmed in writing that the grantees were happy for this matter to be determined on the papers.
The Tribunal’s view was that the information provided by the State that proposed prospecting licence P24/3689 lies in part within the boundaries of an earlier mining lease was inadequate for the purposes of its determination. Consequently, it requested the State to provide further information sufficient to identify the former mining lease, the dates of its grant and termination and the extent of the overlap. This information was provided on 29 November 2000 by letter dated 28 November 2000 with an accompanying coloured Tengraph map prepared by the Department of Minerals & Energy dated 27 November 2000, showing, inter alia, the location and number (M24/361) of the expired mining lease and its relation to the proposed prospecting licence P24/3689. Copies of both of these documents were forwarded to the parties on 29 November with advice that any submissions they might wish to make in respect thereof were to be made by the 6 December 2000. No such submissions have been received and the Tribunal accepts the correctness of the information so provided.
The proposed prospecting licence P24/3689 covers 129.63 hectares. The map of 29 November 2000 reveals that all thereof but a single area of 10 hectares is situate on former mining lease M24/361 which was granted on 7 April 1991 and forfeited on 5 August 1994. That 10 hectare area was formerly the subject of the whole of each of expired prospecting licences P24/3521 and P24/2691 and has boundaries identical therewith. It is rectangular in shape, its southern boundary sits upon the northern boundary of the former mining lease M24/361, and it is surrounded by and has a common boundary on its western, northern and eastern sides with current prospecting licences P24/3166 and 24/3165. It is bounded on the south by the remainder of proposed prospecting licence P24/3689, the boundaries of which remainder coincide with the boundaries of the expired mining lease M24/361 and are common with the boundaries of current prospecting licences P24/3165, 24/3167 and 24/3685 which surround it.
In the absence of any challenge to the evidence or an application for leave to cross examine, the Tribunal is satisfied that the issues in this application can be adequately determined on the papers, documents and other material provided to it and in the absence of the parties.
In respect of the unchallenged advice from the State that portion of the proposed tenement lies within the area of the earlier mining lease, the decision in The State of Western Australia v Ward (2000) 170 ALR 159 is authority for the conclusion that native title is extinguished in respect of so much of the proposed tenement as is situate within the area of the earlier mining lease 24/361. Consequently the Tribunal has no jurisdiction to hold an inquiry or make a determination in respect of that portion of the proposed tenement. Nor has it jurisdiction to make a determination in respect of the eight tenements granted by the State (Daniel & Ors v The State of Western Australia, Butler and MacDonald, WO99/197 unreported, Deputy President CJ Sumner, 11 August 2000). As to the remainder of the land the subject of the proposed grant (the said area of 10 hectares), the Tribunal’s jurisdiction is not challenged and is not the subject of any contrary legal decision.
Evidence –
Re s 237(a)
As I have observed in an earlier objection application by the same objector, the affidavit filed by him in this matter (save for its title) is in precisely identical terms to that filed by him in that and other objection applications made by him. It can be and is used as a common affidavit under different titles in that it does not identify by description or reference to the proposed tenement number the land the subject of the objection but, instead, refers variously to “the area covered by the application of the grantee party”, “the area applied for by the grantee party” and “the area the subject of the application by the grantee party”. In its context in which it is used in the present matter, it refers to the total area of the nine originally proposed tenements, eight of which have since been granted. It is not specific in its terms in any way to any particular proposed or granted tenement. By that affidavit the objector, without challenge, deposes that he, with others of the claimant group, throughout his lifetime has regularly travelled, camped and hunted “throughout the areas applied for by the grantee”. In the present case that must be taken to refer to the total of the areas covered by the nine originally proposed prospecting licences, the eight which were granted being located to the north and east of the proposed prospecting licence P24/3689. He deposes that he travels there to procure materials for spears, artefacts and utensils used for traditional customs, and for hunting and gathering of food, medicine and resources for ritual decoration. The objector also deposes that he often visits the places and sites of significance within the “claimed area” (which again, in context refers to the area of the nine originally proposed tenements) and visits them to engage in ritual activities and carry out the duty of caring for them. He gives no indication however of the location or particular significance of any such site, deposing that for cultural reasons he is not permitted to publicly disclose their nature. I point out that the directions of 11 July 2000 made provision for the protection of documents of a confidential nature (which would include the objector's affidavit if he so chose) from public disclosure, but he has apparently elected not to take advantage of the same. He gives no evidence of any present or previous difficulty in or interference with the carrying on, on the original nine proposed prospecting licences, of the activities to which he deposes whether because of former or current mining tenements or otherwise. Indeed, his evidence makes no reference to the existence of any such mining tenements. It is of considerable relevance in that regard that the map of 20 November 2000 reveals that:
the said 10 hectare portion of the proposed P24/3689 is situated on former prospecting licences P24/3521 and 24/2691 and is bounded on 3 sides by prospecting licence P24/3166 and 24/3165 and is in close proximity to and indeed, is surrounded on all sides for some distance by, current mining tenements.
the balance of the proposed P24/3689 is situated on a former mining lease (M24/361) and also in part on a former prospecting licences (P24/3402 and 24/2509).
The originally proposed but earlier granted prospecting licences numbered P24/3681, 34/3682, 24/3683, 24/3684, 24/3685 and 24/3688 (the only thereof shown on that map), as well as being situated on an expired mining tenement are situated on expired prospecting licences.
Having regard to the lack of specificity of the evidence to the relatively small area of land (10 hectares) the subject of the proposed tenement P24/3689, subject also to native title, the apparent lack of any effect, past or present, of the aforesaid former and present tenements and others in its near vicinity on the ability of the objector and those for whom he speaks to carry out the activities of which he speaks within the area of the originally proposed nine tenements and the absence of evidence of any such effect, I find that the grant of prospecting licence P24/3685 is not likely to interfere directly with the carrying on of any of those activities.
Re s 237(b)
I find the evidence of the objector to be inadequate to lead to a finding of the existence, on so much of the proposed tenement as is subject to native title, of areas or sites of particular significance in accordance with their traditions to the holders of native title within the meaning of those terms as used in s 237(b) of the Act. Consequently, it does not raise the issue of the likelihood or otherwise of interference with any such area or site. I add that the directions made by the Tribunal on 11 July 2000 required the native title party to provide in its statement of contentions a statement of the nature and location of sites or areas of significance on or adjacent to the proposed tenements and the particular significance of each such site. This direction was not complied with, the contentions relevantly asserting, in a paragraph speaking of significant sites throughout the area the subject of Native Title Application WC98/27, only that “all land within the claim contains [sites of significance] and that they are of particular significance as they confirm the existence of ancestral beings”. The objector’s affidavit states no more than that he often visited and visits the places and sites of significance within the “claimed” area (presumably that of the nine proposed tenements), the significance of which, and the rituals associated with which, were taught to him, but for cultural reasons he could not disclose the nature of the sites. Those assertions I find to be too wide and general to carry sufficient weight to lead to a conclusion of the existence on the proposed prospecting licence P24/3689 and, in particular, on that portion of it the subject of native title, of relevant areas or sites of particular significance within the meaning of s 237(b) of the Act and so to give rise to an issue as to the likelihood or otherwise of interference therewith. In the event of an aboriginal site within the meaning of the Aboriginal Heritage Act being discovered on the land the subject of the proposed grant, the provisions of that Act will apply.
Re s 237(c)
As to the provisions of s 237(c), I am unable to find on the evidence that the grant of the tenement is likely to involve major disturbance to any land or waters concerned, or create rights whose exercise is likely to involve major disturbance to any land or waters concerned. I have come to that conclusion taking into account the evidence of the objector, the evidence produced by the State in documentary form, the limited area of the land the subject of the proposed tenement and subject to native title, the fact that it was still the subject of a previous mining tenement and the nature and tenure of the surrounding land. In coming to that conclusion I give to the meaning of the words “major disturbance” used in the sub-section, that given to it in Dann v Western Australia (1997) 74 FCR 391.
Determination
The determination of the Tribunal is that the grant of prospecting licence 24/3689 is an act which attracts the expedited procedure. As to the remaining eight of the originally proposed tenements, the objections thereto are dismissed pursuant to s148(a) of the Act, they no longer being “future acts” and the Tribunal having no jurisdiction to deal with them.
Hon E M Franklyn QC
Deputy President
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